The possibility of additional criminal prosecutions for violation of state sunshine laws is now more than remote.

On December 19, Ohio State Auditor Keith Faber made a criminal referral to the city of Cincinnati against five Cincinnati city councilmembers for dereliction of duty based on the councilmembers' admission, in a lawsuit settlement earlier this year, of violations of the Ohio open meetings laws.

A special prosecutor, former assistant U.S. Attorney Patrick Hanley, has been appointed to decide whether to present the case to the grand jury.

Hanley may decide not to file charges or file additional charges, and no timetable has been set for his investigation.

The referral stems from the auditor's review of text messages relating to public business exchanged by the five councilmembers, the self-described "Gang of Five," between January 18, 2018, and March 24, 2018, in contravention of Ohio's open meetings law.

The Ohio law relating to dereliction of duty prohibits public servants from "recklessly fail[ing] to perform a duty expressly imposes by law with respect to the public servant's office, or recklessly do[ing] any act expressly forbidden by law with respect to the public servant's office."

In this case, the auditor's referral states, the councilmembers "took official action and conducted deliberations upon official business by a majority of a public body, outside of the requirements of the City of Cincinnati charter and the Open Meetings Act, which requires such actions to be done only in open meetings."

The offense is classified as a second degree misdemeanor and carries a fine of $750 and 90 days in jail.

At a press conference conducted today, Hamilton County Prosecutor Joe Deters expressed support for the appointment of the special prosecutor "so that the public will have confidence that their elected officials are performing their duties in an honest and open manner."

Deters emphasized that "you have to conscious of what the rules are if you're an elected official.

"I know what I've seen, and I think it was dumb what they did. I think it was arrogant to perform your duties of office that way."

The Kentucky Open Government Coalition reported on the "Gang of Five " lawsuit earlier this year.

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Additional analysis of criminal prosecutions in open government cases is available at:

https://www.rcfp.org/journals/the-news-media-and-the-law-summer-2003/vi…

https://www.palmbeachpost.com/weather/criminal-charges-rare-public-reco…